In Consolidated Cases for Sentencing, the District Court Must Calculate a Single Guideline Range for all Offenses and Cases

Seventh Circuit Criminal Case Summaries: Sentencing - Criminal History - Guideline Issues

United States v. Tovar-Pina, 713 F.3d 1143 (7th Cir. 2013). The defendant had an illegal reentry conviction, a conviction involving the use of stolen checks, and a supervised release revocation arising in multiple jurisdictions. All of the cases were eventually consolidated into one jurisdiction for purposes of sentencing. The PSR calculated separate guideline ranges of 24 to 30 months for each conviction. The judge at sentencing imposed 30-month terms consecutive on the substantive convictions, as well as an additional 24- month consecutive term on the supervised release revocation. Reviewing for plain error, the court noted that the Sentencing Guidelines instruct courts to determine a single offense level that encompasses all counts of conviction for a given defendant, including those “contained in the same indictment or information,” or as relevant here, “contained in different indictments or information for which sentences are to be imposed at the same time or in a consolidated proceeding.” U.S.S.G. ch. 3, pt. D, intro. comment. Two separate federal grand juries returned indictments against Tovar-Pina—one for the unlawful reentry offense and one for the bank fraud offenses—but the district court was imposing a sentence for both indictments at the same time and in a consolidating proceeding. So, the district court should have applied U.S.S.G. §§ 3D1.4-5 and determined a single offense level, which Tovar-Pina and the government agree on appeal should have been 15 with a criminal category IV, leading to a Guidelines range of 30 to 37 months’ imprisonment on each count, with all counts running concurrently. Because the court failed to calculate this single range, the Court of Appeals remanded for sentencing.

United States v. Gonzalez-Lara, 702 F.3d 928 (7th Cir. 2012). The defendant pleaded guilty to illegal re-entry, and challenged on appeal a 16-level increase for having a prior drug conviction that resulted in a term of imprisonment exceeding 13 months. The defendant argued that he did not receive a sentence exceeding 13 months until his probation on the drug trafficking offense was revoked. The court noted that the plain text of the guideline does not limit the 13-month imprisonment term to a defendant’s pre-revocation sentence. The defendant’s probation was revoked and he received a 3-year sentence on that revocation before his original deportation. The court noted that this case was different that the issue it addressed in United States v. Lopez, where the defendant was sentenced to a term of less than 13 months imprisonment, deported, and the sentenced to more than 13 months on the revocation. In that case, the revocation sentence was imposed after deportation. Here, both the original and revocation term were imposed before deportation, making the 16-level enhancement applicable.

In United States v. Medina, 695 F.3d 702 (7th Cir. 2012), the defendant was convicted of illegal re-entry. He appealed the thirty-seven month sentence he received, contending that he should not have received a sixteenlevel enhancement for being deported after a felony conviction for a "drug trafficking offense" where the imposed sentence exceeded thirteen months or after a felony "crime of violence." Medina argued that his 1989 convictions did not fall within those definitions under the 1989 edition of the United States Sentencing Guidelines and so the enhancement did not apply. The court, however, found that because the crimes qualify under the 2010 Sentencing Guidelines, which were the guidelines in effect at the time of Medina’s sentencing and are the guidelines that matter, the enhancement was proper. There was no question that the defendant’s prior convictions met the 2010 Guideline definition of a "drug trafficking offense." The defendant, however, argued that the definition in the 1989 Sentencing Guidelines should control here because that was when he was sentenced for the prior conviction which warranted the enhancement. If that version were used, his prior 53 conviction would not have qualified as a "drug trafficking offense." The court rejected this argument for a number of reasons. First, the general rule is that a court uses the manual in effect at the time of sentencing. Although other circuits disagree, this circuit in Demaree has held that even if the version in effect at the time of sentencing is harsher than that in effect at the time of the offense, the advisory nature of the Guidelines eliminates any ex post facto concerns. Even if Demaree were incorrect, the consequence here would be to use the guidelines in effect on the date of the offense, not the date on which he committed the offense which qualified him for the enhancement. He committed his offense in 2009, and the Guidelines in effect on that date were the same for purposes of the defendant’s argument as those used at his sentencing hearing in 2010. The defendant also argued that his 1989 convictions should not be used to enhance his sentence, because those offenses were already used to enhance his sentence for a previous illegal reentry conviction. He argued that only priors committed after the first illegal reentry conviction could be used in this second illegal reentry prosecution. The court noted that nothing in the text of the guidelines prohibits the use of the same prior conviction for the same enhancement in two, sequential illegal reentry prosecutions. Therefore, the enhancement was properly applied. PRACTICE NOTE: This circuit’s outlying precedent in Demaree is currently pending before the United States Supreme Court.